The right to request flexible working has, until now, been a rather qualified right with the odds stacked in the employer’s favour. However, the Government announced earlier this week that, following a consultation launched in September 2021 (see our blog post on Making flexible working the default), it would take steps to re-stack the odds. It is further hoping that the changes will mean businesses and organisations will benefit from higher productivity and staff retention. It proposes to do the following:

• Remove the requirement that an employee must have 26 weeks’ continuous service before making a request for flexible working

The Government noted that it wanted to encourage early conversations about flexibility in the job design, recruitment, and appointment phases. Making it a day one right to request flexible working would help that process. However, the announcement makes it clear this is a right to request not a right to have flexible working. 

• Ensure consultation with employees when considering rejection of request 

Currently, employers can reject a request and need only give one of the eight business reasons*. This change would mean that employers are required to show that they have considered alternative arrangements when rejecting a statutory flexible working request and have discussed it with the employee so as to explore alternative options. 

• Change to timings of requests

Currently, only one request can be made in any 12-month period and an employer has three months in which to respond. This will change to two requests in a 12-month period and a two-month response time. 

• Employees will no longer have to set out how the effect of their request might be dealt with by their employer 

This change addresses various gaps in the process highlighted by the consultation. This part of the process deterred, it was felt, lower-paid employees or those with less understanding of their employer from making a request. This resulted in the right to request flexible working being available only to certain employees in more senior roles. Removing this requirement will remove, it is hoped, this tendency towards a two-tier right. The new process will, the Government hopes, encourage more communication and consultation and make it a more 'human' process rather than a statutory tick-box exercise which some fear it has become. Related to this is the right to request flexible working from day one. A new recruit is very unlikely to know in specific detail the effect their flexible working request will have on their new employer.

*What is not changing?
The eight business reasons for refusing a flexible working request have been unpopular for some time. They are regarded as too many and too wide so enabling an employer to easily reject a request. However, the Government is standing firm and not changing them. To shorten the list would, the Government noted, mean that the reasons themselves would become even broader and vaguer and lead to less clarity in any refusal. Many will be disappointed about this, but it is hoped that the other changes will start to make the flexible working process more workable and employee-friendly. 

What do we need to do?

• All employers will need to change their flexible working policies and procedures in accordance with the changes
• All staff should be told about the changes to this policy and procedure and the implications explained
• We would advise that there also be some training for managers and those dealing with requests, so they understand the changes, the reasons behind them and are better equipped to effectively manage a more consultative process

When do we need to act?
We have no time frame yet. The Government will need to lay down new legislation and we have seen no draft and we understand the immortal phrase “when parliamentary time allows” has been used to indicate when it will become law.

In the meantime, be ready to answer employees’ questions – they may well have read about the changes in the news and be wanting to know more. Use the information from our blog if that helps or do contact me if we can help more and check policy documentation. 

Have a happy Christmas and a hopeful New Year!